1 REGISTRAR C BOYLE: In LM v K Lawyers

4 Second, it was common ground that the client had in fact paid the practitioner more than the amount ultimately assessed. That meant that, by one means or another, the client was due a refund. There was some issue about the exact amount of the refund.

5 Third, the client contended that he was entitled to interest on the amount to be refunded.

6 The parties informed me that the costs of the assessment have been agreed. They are to be congratulated upon reaching agreement on what would not have been a small issue. Secondly, the amount of the refund due has been agreed at $106,000.00.

7 What has not been agreed is whether the client is entitled at all to interest on the amount to be refunded to him and, if so, at what rate. The parties have agreed that I should determine this question on the basis of written submissions that they have provided.

8 The first question that has to be determined is whether this is a taxation of costs governed by the Legal Practice Act 2003 (WA), or the Legal Profession Act 2008.

9 As the earlier reasons show, the client first instructed the practitioner in November 2008. The position is therefore governed by s 616 (1) of the 2008 Act. The commencement day of that Act (for all the Act other than s 1 and s 2) was 1 March 2009: see Government Gazette No 31/09, (27 February 2009) page 511.

10 That means that this is in fact a taxation governed by pt 13 of the 2003 Act, and not an assessment under the 2008 Act. While in my earlier reasons I proceeded (without dissent from the parties) on the basis that it was the 2008 Act that governed, I would have reached the same conclusion as to the amount to which the practitioner was entitled for legal fees.

11 It is important to be clear which Act governs because the 2003 and 2008 statutes have different provisions for certification of the result of an assessment or taxation.

(a) the amount of disputed costs allowed; and

(b) the costs of the costs assessment.

(2) Subject to sections 299 (2) (c) and 308, a certificate under subsection (1) is binding on the parties to the costs assessment.

(3) A certificate under subsection (1) bears interest, and may be enforced against any person liable to pay, as if it were a judgment of the Supreme Court for the payment of the amount mentioned in the certificate.

13 There is no provision in the 2008 Act that empowers a taxing officer to make an order for a refund of overpaid costs. There is no mechanism by which a provision about overpayment can form part of the certificate under s 305 which, in accordance with s (3), is enforceable as if it were a judgment.

14 The 2003 Act is, in this and so many other respects, both shorter, clearer, and more useful. Section 240 provides:

(1) The taxing officer must certify in writing the amount at which a bill of costs, and the costs of and incidental to the taxation of the bill of costs, are respectively allowed by the taxing officer.

(2) A certificate under subsection (1) is binding and conclusive on both parties.

(3) A certificate under subsection (1) bears interest, and may be enforced by either party against the person liable to pay, as if it were a judgment of the Supreme Court for the payment of the amount mentioned in the certificate.

15 While that may seem to be functionally identical to s 305 of the 2008 Act, the 2003 Act also includes s 243:

If a bill of costs is taxed under this Division and, as a result of that taxation, the amount which has been paid or deducted in respect of that bill is more than the amount authorised by the taxation, to the extent of the excess, the person charged has a claim for repayment which may be certified and enforced under section 240 as though allowed under that section.

16 Each of s 305 of the 2008 Act and s 240 of the 2003 Act provides that a certificate has effect as if it were a judgment and bears interest as if it were a judgment. That is of course only interest from the date of the certificate.

17 However, under the 2003 Act, the content of the certificate of taxation may include certification of an amount that the practitioner must refund to the person charged.

18 That is the situation that obtains here: the practitioner's costs have been taxed and the amount to be refunded to the person charged as a result of that taxation has been agreed. The certificate of taxation can (must?) include that. That is the effect of s 243. Once the certificate is signed, it may be enforced as if it were a judgment.

19 Section 32 (1) of the Supreme Court Act 1935 (WA) is in the following terms:

(1) In any proceedings for the recovery of any money (including any debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.

20 The submission of the client is that s 32 of the Supreme Court Act operates so as to enable a taxing officer to provide in the certificate for prejudgment interest (that is, interest from an earlier date than the date of the certificate).

21 That depends on whether the certification under the statutory power is a judgment for the purposes of s 32 of the Supreme Court Act. That in fact breaks down into two questions:

1. whether for this purpose a certificate of taxation is a judgment; and
2. if it is, whether the taxing officer is 'the Court' for the purposes of s 32.

22 I think that in the end both questions may be resolved by reference to the plain words of the legislation. It would have been simple for the legislation governing the taxation or assessment of a legal practitioner's costs to provide that, at the end of the process, the taxing officer was to enter judgment for the amount found to be due. But the governing statutes, from the Legal Practitioners Act 1893 (WA) to the Legal Practice Act 2003 and ultimately to the Legal Profession Act 2008, have never been in those terms.

23 Relevantly, the 2003 Act provides in s 240 (1) is to 'certify in writing' the amount allowed.

24 If the legislative intention were that this certification amounted to a judgment, s (2) of s 240 would be otiose: it is hardly necessary to say that a judgment is binding on both parties.

25 Instead, s (3) provides that the certificate under s (1) bears interest and may be enforced 'as if it were a judgment of the Supreme Court for the payment of the amount mentioned in the certificate'.

26 The phrase 'as if it were' is clearly a phrase denoting equivalence only. It is not language that identifies the certificate as a judgment. 'As if it were' is not 'is'. The answer to the first of the questions posed immediately above in relation to s 32 is therefore in my opinion 'no'.

27 Having decided that a certificate of taxation issued under s 240 of the Legal Practice Act 2003 is not a 'judgment' for the purposes of s 32 of the Supreme Court Act, it is strictly not necessary for me to decide whether a taxing officer is 'the Court' for the purposes of this section.

28 However, in case I am not correct about the first of the questions I have identified, I will consider this section.

29 Section 4 (1) defines 'the Court' as meaning 'the Supreme Court of Western Australia'. By s 6 (1), the Act continues in existence the previous court. Section 6 (3) provides that the court consists of (in essence) any judge, any acting or auxiliary judge, any commissioner, and any master or acting master.

30 'The Court' for the purposes of s 32 (1) must therefore consist of a judge, etc, or master, etc, unless there can be found some delegation of authority under the Act or the Rules of the Supreme Court 1971 (WA) by which a registrar as a taxing officer constitutes 'the Court'.

31 The submissions on behalf of the client point to no such delegation. Nor do I think there is any. Order 60A.1 of the Rules of the Supreme Court empowers a registrar to exercise certain enumerated powers. None of the powers listed in that rule is relevant.

32 Accordingly, even if I had found that a certificate of taxation is a judgment, I would have found that the taxing officer is not the court for purpose of awarding interest under s 32 (1).

33 Accordingly, there will be a certificate for costs allowed on taxation, the costs of the taxation, and the agreed amount of the refund due to the client.